Tag Archives: medical malpractice

Patients for Fair Compensation Continues Push for Administrative Solution to Medical Malpractice Claims in Tennessee
Patients for Fair Compensation is making another push to change the way medical professional liability claims are adjudicated against physicians in Tennessee. The state’s medical association, trial bar and largest insurer of physician liability are saying, no way.

Founded in 2011 as a Section 501(c)(4) organization by Richard Jackson, chief executive of the healthcare staffing firm Jackson Healthcare, Patients for Fair Compensation advocates moving the determination of medical liability claims from the judicial method to a no-blame, administrative compensation system overseen by a Patient Compensation Board. The board would operate similar to the way workers’ compensation claims are handled, reviewing claims of medical liability and awarding settlements. All claims would be settled in a matter of months, rather than years.

According to Patients for Fair Compensation, eliminating the litigation process against physicians in favor of a Patient Compensation Board for the determination of medical liability compensation would lower healthcare costs by eliminating the incentive for physicians to practice defensive medicine. In addition to eliminating unnecessary medical tests and procedures, it would put patients at the forefront of the process and realign incentives towards patient safety and a reduction in medical errors, while assuring all patient complaints are heard, quickly resolved and more patients are fairly compensated.

This is not the first time Patients for Fair Compensation has campaigned for its Patient Compensation System before the Tennessee Legislature, nor is it the first state where it has lobbied for such legislation. In the past, it has advocated for its administrative liability compensation system in Florida, Georgia, Maine and Montana to no avail. The legislation never escaped committee in Florida, Georgia and Montana; it was voted down in Maine.

“We stand with the Tennessee Medical Association in opposition to the Patients for Fair Compensation legislation,” said Sherie Edwards, vice president of corporate and legal at State Volunteer Mutual Insurance Co. (SVMIC), Tennessee’s largest provider of physician medical liability insurance. “If we thought the system was good for our physicians, we would be supportive of it. Our mission is to protect, support and advocate for our physicians, and this is not a good system for them.”

United in Opposition
When Patients for Fair Compensation eyed Georgia as the first state to try to enact its Patient Compensation System in 2013 under the banner Senate Bill 141, the Medical Association of Georgia, State Bar of Georgia and medical liability insurer MagMutual Insurance Co. banded together in opposition, favoring the existing medical liability tort reforms that were passed in 2005.

“Since the 2005 tort reforms, we have hard statistics that show claims frequency is down, malpractice payments are down, medical malpractice insurance premiums are down and competition is up,” said Joseph Cregan, MagMutual senior vice president and general counsel told Medical Liability Monitor in December 2013. “We’ve analyzed [Georgia] SB 141 in detail, and the No. 1 thing that should be noted is that the system it proposes has never been tried in any other state. There is no track record; no observable data to know what it would do. The other side claims — and has pointed out — statistics and measurements, but when you cut through all those, they’re just speculative.”

Last year, the American Medical Association officially commented on the “no-fault” system for compensating patients who experience adverse medical outcomes, calling the system “a new threat to medical liability reform” under which the number of medical liability claims paid would skyrocket.

SVMIC points to the fact that if the system is only enacted in Tennessee, the state’s physician population could expect increased claims and increased reports to the National Practitioner Data Bank, while healthcare professionals in neighboring states would continue to enjoy the national trend where claim frequency and claim costs continue to diminish.

“How many physicians are going to want to stay in a state where they face increased reporting to the Data Bank, when they could go right over the border to Kentucky or Alabama or Arkansas, Georgia, North Carolina or South Carolina and avoid that?” Edwards asked. “We believe that would cause a real access to healthcare problem for consumers in Tennessee. The way the proposed legislation was worded last year, a panel of physicians would look at the care rendered before deciding whether or not it met a national standard of care, which we don’t have in Tennessee. We have a local standard of care, so then our physicians would also lose the right to defend their care in a trial by jury. Nobody wins under this proposed system, which is why we are opposed to it.”

In Part III of our series, Patient Records Requests: What You Need to Know, we ask attorney Richard J. Rymond of Reminger Co., LPA whether it is better to provide the original records or copies of them. As Richard explains, copies are always recommended, as it is important for the physician to retain control over the records. If the original records are given, then the records could be inadvertently altered or misplaced.

Richard also goes on to explain the importance of providing a complete copy of the patient records, including any details such as color coding. Color coding can be found in both handwritten charts and electronic records, so physicians will need to be prepared to produce colored copies, whichever type of record they use.

View Part III of the series below. Or, watch the entire interview from the beginning here.

In Part II of our series, Patient Records Requests: What You Need to Know, we ask attorney Richard J. Rymond of Reminger Co., LPA about responding to requests from a third party, such as a patient’s attorney or representative, or another healthcare provider. As Mr. Rymond explains, physicians can only release records to a third party if they receive a HIPAA-compliant authorization signed by the patient. Without this document, releasing records may violate HIPAA laws and expose physicians to additional liability. With this in mind, it is key that a physician contact their insurance company or a lawyer if there is any doubt on whether or not it is appropriate to release records to a third party.

See below to watch Part II of our interview, or click here to watch the entire video.

If 2% of Physicians Are Responsible for Half of Malpractice Payouts, How Should We Intervene with These Outliers?

Last month, the Journal of Patient Safety published “The Detection, Analysis and Significance of Physician Clustering in Medical Malpractice Lawsuit Payouts,” an analysis of data from the National Practitioner Data Bank (NPDB) that indicates only 1.8 percent of American physicians have been responsible for at least half of the more than $83 billion in medical malpractice payments between 1990 and 2015. This assessment is in keeping with another study of NPDB data published earlier this year by The New England Journal of Medicine that found just 1 percent of doctors were associated with 32 percent of all malpractice settlements paid between 2005 and 2014. The NPDB is a federally mandated repository for information regarding medical professional liability payments.

“The Detection, Analysis and Significance of Physician Clustering in Medical Malpractice Lawsuit Payouts” study analyzed total claims payouts rather than number of claims because the authors theorized that “total claim payouts are a better predictor of future malpractice claims than the total number of claims paid because this metric would be expected to have a positive relationship to both the severity of the event and the number of claims paid.”

The good news is that the number of U.S. physicians grossly underperforming their peers has been on the decline. A very similar study of NPDB data 15 years ago by the nonprofit consumer advocacy group Public Citizen found that 5 percent of physicians were responsible for half of all malpractice awards. What this tells us is that the combination of medical liability tort reforms and risk management investment has been fruitful. It also indicates that the less than 2 percent of physicians responsible for half of medical malpractice payouts in the Journal of Patient Safety study are true outliers, driving up insurance costs for the other 98 percent of physicians.

The authors of “The Detection, Analysis and Significance of Physician Clustering in Medical Malpractice Lawsuit Payouts” emphasized the potential for their data approach to find and intervene with those physicians likely to have repeated episodes of complaints and claims. And because “those physicians in the group responsible for 50 percent of the dollars paid were more likely to have higher payments and to be repeaters than the entire group for the most commonly occurring numbers of payments, it suggests that the best way to identify physicians requiring intervention involves examining the total malpractice dollars paid by physicians.”

The ability to identify those physicians likely to have repeat, high-dollar payments would be of enormous benefit to hospital systems, medical professional liability insurers and the at-risk healthcare professionals themselves. If the outlier physicians’ malpractice payouts could be reduced or eliminated, it would make a significant difference in the nation’s total malpractice payouts, allow for greater actuarial accuracy when determining medical professional liability insurance premiums and offer the opportunity to intervene early with risk management courses for those physicians most likely to incur repeat, high-dollar claims in the future.

If hospital systems are able to determine which physicians carried the highest claim risk, they could segregate them out from their self-insurance vehicle in favor of other insurance options. Perhaps insurers of medical liability could take a page from Speaker of the House Paul Ryan suggestion for insuring Americans with a preexisting condition and create non-standard, high-risk pools for those physicians likely to have future high-dollar claims. Acceptance into these high-risk pools could mandate participation in deep patient safety and risk management training with the hope that these at-risk physicians could change course and ultimately re-enter the standard medical professional liability insurance market.

Many industries are already using big data and predictive analytics to forecast trends and alter employee behavior. Applying this approach to healthcare liability carries the potential to further reduce claims frequency and deflate the cost of medical professional liability insurance costs for the 98 percent of practicing physicians who are not likely to have recurring, high-dollar malpractice claims.

Many physicians will face a medical liability claim at some point during their practice – and most liability claims mean a request for patient records. Join us on the latest episode of Healthcare Matters, Patient Records Requests: What You Need to Know, as we discuss how to respond to patient records requests with Richard J. Rymond, a trial attorney at Reminger Co., LPA who specializes in medical and dental liability, as well as other types of professional, general and commercial liability. In the first part of our interview, Richard explains how physicians should be careful to respond promptly and courteously, and with the complete information that is requested. He also stresses the importance of not making any changes, additions or alterations to patient records. Even if the physician has good intentions, as Richard explains, the consequences can be severe and can expose the physician to additional claims.

See below to watch Part I of the interview, or click here to watch the entire video.

The era of big data in medicine is here, and it promises to improve the overall quality and efficiency of healthcare, increase profitability, reduce waste, predict epidemics, cure diseases and help avoid adverse medical outcomes. Of course, its success is reliant upon collecting the right data and the ability to meaningfully interpret that data.

Smart entrepreneurs have recognized that—under the reforms contained in the Patient Protection & Affordable Care Act of 2010—the value of data and data analytics in healthcare will only amplify, and during the last six years, more than 200 private-sector businesses have been founded to develop an array of tools to better use available healthcare data as well as collect and analyze new data metrics.

In April of this year, SE Healthcare Quality Consulting—a healthcare quality, safety and analytics company headquartered in Charleston, S.C.—and Saxton & Stump—a Pennsylvania-based law firm focused on representing and assisting healthcare providers—officially launched their collaborative Physician Empowerment Suite, a web-based tool that lets healthcare providers generate actionable data that mitigates liability risk while also improving the provider’s position in reimbursement negotiations with payers. Thousands of providers are already using the platform.

“What our companies recognized when working on the Physician Empowerment Suite is that there is an overlap between reducing medical liability exposure and enhancing healthcare practice economics,” said Jim Saxton, Esq., chief executive of Saxton & Stump as well as a board member for SE Healthcare Quality Consulting. “One of the most significant data points we measure, which directly influences liability and reimbursement, is patient engagement. There is an abundance of research that indicates the more engaged patients are, the more likely they are to be satisfied with their care and the less likely they are to file a medical malpractice claim. Similarly, as the healthcare delivery system continues down the road of value-based contracts and reimbursements based on population health, demonstrating patient engagement will have a greater influence over the economics of healthcare.”

Developed through collaboration between clinical and legal experts, the Physician Empowerment Suite gives providers the essential building blocks to capture and own the data necessary to evaluate baseline performance as well as identify areas of professional liability risk and opportunities for performance improvement. This data can also be used when negotiating value-based contracts.

Leveraging Data in Value-Based Contract Negotiations

Success in a reimbursement environment increasingly populated by value-based contracts requires sophisticated data and analytics to measure financial and quality performance for each population of patients. Those providers and health systems unable to prove they have met negotiated metrics will face the untenable burden of financial penalties and lower reimbursements.

“Many providers feel this new reimbursement environment is punitive and largely out of their control,” said Richard Hammer, MD, executive vice president of SE Healthcare Quality Consulting’s Partners in Safety Program. “Our system generates for providers meaningful data that they can use to manage and negotiate their contracts. In effect, it allows them to reassert control.

“Every value-based contract that I’ve seen includes quality of care and cost of care requirements. Quality of care is a very grey variable that even payers have difficulty defining. So where the providers can have the greatest impact when negotiating value-based contracts is to define and demonstrate quality themselves, and the Physician Empowerment Suite provides them the data to do so.”

The Physician Empowerment Suite generates this data by enabling providers to easily survey patients, track and monitor results, and quickly take action to improve the patient experience. It also benchmarks physicians on a number of specialty-specific best practices and provides real-time scorecards on physicians’ patient engagement as well as educational modules to help practices make important improvements.

Hammer shared the story of a large primary care group he worked with where more than a third of its revenue came from value-based contracts. After implementing the Physician Empowerment Suite, the practice was able to measure patient engagement and realign its resources to improve those scores. The result was greater patient compliance, better medical outcomes and healthcare delivery that is 26-percent less expensive than its peers. And they were able to demonstrate these results with meaningful data when renegotiating their contracts.

“Previous to implementing the Physician Empowerment Suite, the group was completely at the mercy of their health plan payers’ data when negotiating,” Hammer said. “With the use of our tools, they were able to generate their own performance data that was so obviously superior, both statistically and clinically, that they were able to replace a portion of the inadequate payer data with the data that they generated. And when you come to the table with meaningful data that demonstrates you are hitting quality metrics, it balances the power in negotiations.”

Using Data to Get Ahead of a Medical Liability Claim

Because predictive analytics extracts information from created data sets to determine future patterns and trends, it can be a powerful tool to intercede with appropriate risk management mechanisms prior to an unanticipated adverse medical outcome. But that data needs to be specialty-specific and manageable, and during the development of the Physician Empowerment Suite, the research and development team was able to narrow as many as 150 currently available metrics down to 20 to 25 specialty-specific, actionable data points.

“By measuring doctors on certain critical data points, we can use that actionable data to reduce their liability exposure,” Saxton said. “And this is going to be increasingly important in healthcare moving forward because there are aspects of the changes in reimbursement which could, if you’re not careful, actually increase liability exposure.”

Saxton used obstetrics as an example where reimbursement incentives could expand liability risk.

“Payers are applying pressure to reduce the number of C-sections, while at the same time unknowingly creating financial incentives to induce labor,” he said. “This pressure influences OB decision making, often forcing them into a no-win situation when deciding the best clinical choice for delivery. All too often, the result is a compromise that can increase clinical risk for both mother and baby. The Physician Empowerment Suite works within this structure by measuring the risks of adverse outcomes, like shoulder dystocia, post-partum hemorrhage and inappropriate inductions. Each OB receives a score, a comparison to their peers and other critical feedback that can be used to improve quality and reduce risk.”

Opportunities for Medical Liability Insurer Partnerships

Healthcare providers in 17 states are currently employing the Physician Empowerment Suite, and the Saxton & Stump/SE Healthcare Quality Consulting collaboration has entered contractual partnerships with several medical professional liability insurance companies, including Constellation Mutual and Central Pennsylvania Physicians Risk Retention Group, to market the Physician Empowerment Suite to its members.

“We’re looking for other serious, qualified partners who really care deeply about healthcare quality and safety, and believe in the power of data analytics,” Saxton said. “Medical professional liability companies are an obvious fit because if they can help an insured better position themselves economically and risk-wise through the Physician Empowerment Suite; that’s the definition of value. The insurer thereby solidifies a partnership with the doctor.”

Two decades since the term “hospitalist” was first coined in a 1996 New England Journal of Medicine article looking at the expanding role of general internists employed in the hospital setting, the more than 44,000 hospitalists nationwide are more critical to the success of the American hospital system than ever before. Because hospitalists have demonstrated the ability to decrease the length – and cost – of a patient’s hospital stay, improve overall safety and reduce the number of readmissions after discharge, their expertise is paramount as the healthcare delivery system moves from a volume- to a value-based reimbursement model.

As their presence became more prominent in the late 1990s and early 2000s, hospitalists affected fundamental change to the hospital healthcare system:

• Previously, primary care physicians in private practice attended to their patients in the hospital during daily rounds. If the patient’s primary care physician was not on the hospital grounds when a decision on care arose, the hospital’s clinical staff would call the primary care physician. Now, hospitalists are charged with the continuum of care during a patient’s hospital stay, not the primary care physician.

• Hospitalists took over many roles in the hospital setting, including quality assurance, patient risk management, the teaching of medical students/residents, protocol development, utilization-review activities and patient satisfaction improvement.

• The length and cost of a patient’s stay in the hospital decreased when under the supervision of a hospitalist, and the quality of care and patient satisfaction increased.

The positive effect that hospitalists had on quality and efficiency in the hospital system dovetailed with the emerging realities of managed care, which emphasizes coordination and efficiency as a means to contain overall cost. As such, the number of hospitalists grew from less than 1,000 in the 1990s to more than 30,000 nationwide – with a presence in more than half of all hospitals – by the end of the 2000s. The Bureau of Labor Statistics estimates this sector to grow by 15 percent during the next decade.

With the explosive increase in the number of hospitalists in practice, there has to be a correlating increase in the number of medical professional liability claims against the specialty. Because the hospitalist phenomenon is relatively new, there has been little data available on how the specialty’s medical liability claims benchmark against other specialists and general internists.

Medical professional liability insurer The Doctors Company (TDC) – the nation’s largest physician-owned insurer of physician medical liability – recently analyzed the claims data of its insured hospitalists to publish its “Hospitalist Closed Claim Study: An Expert Analysis of Medical Malpractice Allegations.” The study analyzed 464 claims against hospitalists insured by TDC between 2007 and 2014. More than 2,100 hospitalists were insured by TDC during this period.

According to the TDC study, 78 percent of all claims against hospitalists fell into one of the three allegations: failure to, delay in or wrong diagnosis accounted for 36 percent of all claims against hospitalists; improper management of treatment accounted for 31 percent of all claims against hospitalists; and medication-related error accounted for 11 percent of claims against hospitalists.

Authors of the TDC hospitalist study drilled down on the factors contributing to patient harm, and the most common factors underlying a claim against a hospitalist included: patient assessment issues contributed to patient injury in 35 percent of cases; communication among providers contributed to patient injury in 23 percent of claims; selection and management of therapy contributed to patient injury in 16 percent of claims; communication between patient or family and provider contributed to patient injury in 12 percent of claims; failure to obtain a consult or referral contributed to patient injury in 12 percent of claims; and patient noncompliance factors contributed to patient injury in 12 percent of claims.

Due to the nature of their role in the healthcare delivery system, hospitalists treat patients with a higher acuity and greater complexity without the benefit of an established patient-physician relationship. This bore out when benchmarking hospitalist patient injury severity against all other physician specialties. According to the TDC hospitalist study, 72 percent of claims against hospitalists fell within the high-severity (permanent significant, permanent major, permanent grave or death) range of injury, while only 34 percent of claims against all physicians fell within the high-severity range.

Upon reviewing the claims against hospitalists, TDC created a list of risk mitigation strategies that can help hospitalists avoid the issues outlined in its study. These include building a rapport with nursing staff so that they are more likely turn to the hospitalist should any questions arise, provide advanced warning to the next shift’s hospitalist team for patients who have confusing presentations or deteriorating conditions, review all documentation to be aware of all consultation reports and any subtle changes in the patient’s condition that nurses have noted, among others.